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Successful strike out of NIHL claim: failure to restore to the Register

21 Jul 2015

Successful strike out of NIHL claim: failure to restore to the Register

Davies v Webb Son & Company Limited
County Court at Pontypridd
21 April 2015

DWF’s disease team has recently succeeded in having two noise induced hearing loss claims struck out following defaults on the part of the claimant.

In this article Sarah Stutchfield discusses her case of Davies v Webb Son & Company Limited (2015). The claim was struck out following the claimant’s failure to restore the dissolved defendant to the Register of Companies, and failure to serve medical evidence and a schedule of loss with the proceedings.

In a separate article Angela Thompson discusses her case of Allen v Johnson Electrical International (UK) Ltd (2015) in which the claimant failed to serve medical evidence with the proceedings. Find out more.

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Background

This was a noise induced hearing loss claim. The claimant entered into a Conditional Fee Agreement with her solicitors on 8 September 2011. The letter of claim was dated 3 October 2012 and proceedings were issued on 12 September 2014. No medical evidence was served with the particulars of claim in breach of the CPR. We filed a defence averring that the proceedings were invalid for a number of reasons: a failure to restore the dissolved defendant to the Register; the claim was statute barred; and there had been breaches of the CPR for failure to serve medical evidence and a schedule of loss. At the same time we made an application to strike out the claim.

Facts

The claimant’s solicitors confirmed in an open letter dated 6 September 2013 that the claimant underwent a hearing test on 8 September 2011 and that this was her date of knowledge for the purposes of the proceedings. The defendant had not been restored to the Register of Companies prior to the issue of proceedings and therefore the proceedings were invalid. Had the claimant’s solicitors now sought to restore the company to the Register of Companies then the claim would be statute barred.

In relation to medical evidence, the claimant’s solicitors had three and a half years to obtain the medical evidence but failed to do so.

At the time our application was heard, we had still not received any medical evidence or a schedule of special damages in support of the claimant’s claim. The application was heard at Pontypridd County Court.

Findings

The claim was struck out as per our application. The District Judge took the view that the claimant had issued proceedings against a nullity. As there was no application to restore the company to the Register, he felt that he was left with no option but to strike the case out.

Had the issue solely been the failure to serve a medical report, he indicated he may have been persuaded to allow the claim to continue particularly as at the time of the hearing of the application, the claimant had secured an appointment for a medical report. As things stood, he felt he had no option.

The District Judge awarded the defendant’s insurers their costs.

Comment

This case highlights the importance of always undertaking Companies House searches on defendant companies to ascertain whether they are dissolved and whether or not the claimant has applied to restore the company to the Register. If a dissolved company has not been restored, then proceedings have been issued against a nullity and are invalid.

In this case, it was certainly worth making the application given the claimant’s solicitors’ concession in relation to date of knowledge which meant any fresh proceedings against the restored company would be out of time.

In addition, there were further breaches of the CPR as the claimant had failed to serve medical evidence in support of her claim or a schedule of loss in support of the special damages claim.

It is however concerning to note that the District Judge may have been more sympathetic to the claimant had the proceedings been validly served despite the fact that the claimant had over three and a half years to obtain medical evidence and had not done so.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.